UC Irvine Law Review

As a result of the women’s rights movements of the twentieth century, the law shifted the origin of family creation from the married man to the person who gave birth, resulting in the presumption of maternity as the law has now. This Note explores how the presumption of maternity fails to provide legal recognition to nontraditional families—including families who use Assisted Reproductive Technology, same-sex parents, and unmarried parents—and how it furthers gender and sex-based norms within a family, parenting, and marriage. In response, the Note identifies the underlying justification to the modern presumption of parentage: the belief that a person intends to be a legal parent through the act of giving birth to the child or by marriage to the child’s birth parent. By looking at how intent to parent is already a part of our legal and social understanding of parentage, the Note argues that the law should shift away from the presumption of maternity in favor of an intent-based parentage system when assigning legal parents at the time of a child’s birth. As part of shifting to an intent-based system, the legal system will better reflect our social notions of the family and each person’s chosen role within the family.